Judge: Joel L. Lofton, Case: 23AHCV00677, Date: 2024-01-11 Tentative Ruling
Case Number: 23AHCV00677 Hearing Date: February 29, 2024 Dept: X
Tentative Ruling
Judge Joel L. Lofton,
Department X
HEARING DATE: February
29, 2024 TRIAL
DATE: No date set.
CASE: DIANA TURK BARNES,
Trustee of the DB Living Trust, dated April 29, 2022, v. JACOB S. SZYMANSKI and
CAROLINE F. SZYMANSKI, Co-Trustees of the Szymanski Community Property Trust
Dated December 6, 2018, and DOES 1 through 50, inclusive.
CASE NO.: 23AHCV00677
DEMURRER
MOTION
TO COMPEL FURTHER
MOVING PARTY: Demurrer filed by Defendants Jacob
and Caroline Szymanski
Motion to compel further filed by Plaintiff
Diana Turk Barnes
SERVICE: Demurrer
filed July 13, 2023
Motion to compel further filed December
27, 2023
OPPOSITION: Opposition
to demurrer filed February 15, 2024
Opposition to motion to compel
further filed February 15, 2024
REPLY: Reply to motion to compel further filed February
21, 2024
RELIEF
REQUESTED
Defendants demurrer to Plaintiff’s second cause of action for trespass.
Plaintiff moves for an order
compelling Defendants to provide further responses to her requests for the
production of documents.
BACKGROUND
This case arises out of Plaintiff Diana Turk
Barnes’s (“Plaintiff”) claim that an adjacent property poses a risk to her
property. Plaintiff owns property located at 370 Sequoia Drive in Pasadena,
California (“Plaintiff’s Property”). Plaintiff alleges that Defendants Jacob S.
Szymanski and Caroline F. Szymanski (“Defendants”) own property located at 353
Anita Drive in Pasadena California (“Defendants’ Property”). Plaintiff alleges
that the two properties share a common slope and that the condition of Defendants’
property poses a risk to her property. Plaintiff filed this complaint on March
28, 2023, alleging six causes of action for (1) negligence, (2) trespass, (3)
deprivation of subjacent and lateral support, (4) nuisance, (5) injunctive
relief, and (6) declaratory relief.
TENTATIVE RULING
Defendant’s
demurrer to Plaintiff’s second cause of action for trespass is OVERRULED.
Plaintiff’s
motion to compel further is GRANTED in part and DENIED in part.
Defendant
is ordered to provide further responses to RFP number 9.
All
requests for sanctions are denied.
LEGAL STANDARD
Demurrer
A general
demurrer may be taken to a complaint where “[t]he pleading does not state facts sufficient to
constitute a cause of action.” (Code of Civ. Proc. § 430.10(e).) A demurrer for sufficiency tests whether the
complaint states a cause of action. (Hahn
v. Mirda (2007) 147 Cal. App. 4th 740, 747.) In a demurrer proceeding, the
defects must be apparent on the face of the pleading or by proper judicial
notice. (Code Civ. Proc. section
430.30(a).) A demurrer tests the pleadings alone and not the evidence or
other extrinsic matters. (SKF Farms v. Superior Court (1984) 153
Cal. App. 3d 902, 905.) The only issue involved in a demurrer hearing is
whether the complaint, as it stands, unconnected with extraneous matters,
states a cause of action. (Hahn v.
Mirda, supra, 147 Cal.App.4th 740, 747.)
Motion to Compel Further
On receipt of a response to discovery requests, the party requesting may
move for an order compelling further responses for interrogatories (Code Civ.
Proc. 2030.300), requests for admission (Cod. Civ. Proc. section 2033.290), and
request for production (Code Civ. Proc. section 2031.310). “Unless notice of
this motion is given within 45 days of the service of the verified response, or
any supplemental verified response, or any specific later date to which the
requesting party and the responding party have agreed in writing, the
requesting party waives any right to compel further response to the requests
for admission.” (Code Civ. Proc. section 2033.290, subd. (c).
DISCUSSION
Demurrer
Defendants demurrer to
Plaintiff’s second cause of action for trespass.
“ ‘Trespass is an
unlawful interference with possession of property.’ [Citation.] The elements of
trespass are: (1) the plaintiff's ownership or control of the property; (2) the
defendant's intentional, reckless, or negligent entry onto the property; (3)
lack of permission for the entry or acts in excess of permission; (4) harm; and
(5) the defendant's conduct was a substantial factor in causing the
harm. (See CACI No. 2000.)” (Ralphs Grocery Co.
v. Victory Consultants, Inc. (2017) 17 Cal.App.5th 245, 261-62.)
Plaintiff
alleges control of her property. (FAC ¶ 2.) Plaintiff alleges that Defendants engaged in actions on
their property that caused erosion to a slope on Defendants’ property. (Id. ¶¶
12-15.) Plaintiff alleges that Defendants’ actions allowed water to enter the
subsurface soil of Plaintiff’s property. (Id. ¶ 52.) Plaintiff alleges harm
and causation. (Id. ¶¶ 53-54.) At the pleading stage, Plaintiff’s
allegations are sufficient to state a claim for trespass. Defendants’ demurrer
is overruled.
Motion to Compel Further
Plaintiff moves for an order
compelling Defendant to provide further responses to her requests for the
production of documents. Plaintiff provides that she served her requests for
the production of documents set one on June 29, 2023. (Samtani Decl. ¶ 2.) Plaintiff provides Defendant served
responses on August 1, 2023, and supplemental responses on November 27, 2023. (Id.
¶¶ 4 and 8.) Plaintiff asserts that Defendant’s responses failed to
properly respond to requests for the production of documents (“RFP”) numbers 8,
9, 10, and 11.
RFP No. 8: All
DOCUMENTS RELATING TO YOUR hiring of a real estate agent for YOUR purchase of
the OFFENDING PROPERTY.
RFP
No. 9: All DOCUMENTS RELATING TO the listing price of the OFFENDING
PROPERTY when YOU purchased it.
RFP
No. 10: All DOCUMENTS RELATING TO offers YOU made when YOU purchased
the OFFENDING PROPERTY.
RFP
No. 11: All DOCUMENTS RELATING TO counter-offers made to YOU when
YOU purchased the OFFENDING PROPERTY.
Plaintiff’s
motion to compel further responses is granted as to RFP number 9 and denied as
top RFP numbers 8, 9, and 11. All requests for sanctions are denied.
CONCLUSION
Defendant’s
demurrer to Plaintiff’s second cause of action for trespass is OVERRULED.
Plaintiff’s
motion to compel further is GRANTED in part and DENIED in part.
Defendant
is ordered to provide further responses to RFP number 9.
All
requests for sanctions are denied.
Moving
Party to provide notice.
Dated: February 29,
2024 ___________________________________
Joel
L. Lofton
Judge
of the Superior Court